Braun v Legal Complaints Review Officer

[2022] NZHC 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-214

[2022] NZHC 2020

BETWEEN

TOBIAS MICHAEL BRAUN and KEVIN IAN BOND
Applicants

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

SIMONE HARRIS

Second Respondent

Hearing:

On the papers

Counsel:

J Long for the Applicants

H Carrad for the First Respondent G Walsh for the Second Respondent

Judgment:

16 August 2022

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 16 August 2022 at 11 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

J Long, Barrister, Auckland

H Carrad, Crown Law, Wellington G Walsh, Solicitor, NSW, Australia

BRAUN v LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 2020 [16 August 2022]

[1]This is an application for costs.

[2]        On 28 June 2022, I granted an application for judicial review brought by the applicants, Tobias Braun and Kevin Bond (together the applicants) of a decision of a Legal Complaints Review Officer (LCRO). I quashed the decision of the LCRO and made an order amending the decision of the Law Society Standards Committee (the Committee), which the LCRO had upheld.1

[3]        Costs were reserved. The parties have been unable to agree costs. The applicants now seek scale costs on a 2B basis, totalling $14,220.50, with disbursements of $2,025.77 (excluding GST) to be apportioned between the two respondents.

[4]        Costs are opposed by the LCRO and the second respondent, Simone Harris. The LCRO was not represented at the substantive hearing and abided the Court’s decision. Ms Harris appeared, representing herself.

Legal principles

[5]        The costs regime is governed by Part 14 of the High Court Rules 2016 (the Rules). It is well-established that costs are awarded at the discretion of the court.2 However, the principle that the unsuccessful party in a proceeding pays the successful party will guide the court’s determination.3

[6]        The Court of Appeal’s decision in Coroner’s Court v Newton is the leading authority on costs against courts and judicial officers.4 Principles emerging from Newton are as follows:

(a)A costs order against a judicial officer is an expression of disapproval of the officer’s conduct;

1      Braun v Legal Complaints Review Officer [2022] NZHC 1501.

2      High Court Rules 2016, r 14.1.

3      High Court Rules, r 14.2(1)(a).

4      Coroner’s Court v Newton [2006] NZAR 312 (CA).

(b)Costs will only be awarded against a judicial officer when the officer has done something calling for strong disapproval;5

(c)It must be shown that the officer acted perversely, oppressively or in bad faith;6

(d)Costs will not be awarded because a judicial officer has made a mistake in law.7

[7]        In G v Legal Complaints Review Officer (No 2), this Court found that the principles established in Newton apply to the LCRO as a quasi-judicial officer.8

[8]        It is well-established that a judicial decision-maker will abide the decision of the Court on judicial review, rather than defending their decision.9

Analysis

Is the LCRO liable for costs?

[9]        The applicants acknowledge that it is uncommon for the LCRO to pay costs following successful judicial review proceedings, especially where the LCRO has abided the decision of the Court. However, they say that a contribution to costs can nevertheless be warranted where the LCRO has acted in a seriously bad manner that warrants the Court’s expression of disapproval.

[10]      Counsel for the applicants, Mr Long, submits that, in view of the number and type of errors identified by the judicial review, regarding the law of process and the LCRO’s own review jurisdiction, the LCRO’s decision was perverse.10 Mr Long highlights the Court’s reference to Wednesbury unreasonableness, and the fact that the Court took the unusual step of ordering substitutionary relief. Mr Long submits that

5      N v District Court of New Zealand [2020] NZHC 252 at [13].

6      Magistrates Court of Victoria at Heidelberg v Robinson [2000] VSCA 198, (2000) 2 VR 233.

7      Coroner’s Court v Newton, above n 4, at [46].

8      G v Legal Complaints Review Officer (No 2) [2019] NZHC 1380, [2019] NZAR 1236 at [8].

9      Engineers Union v Court of Arbitration [1976] 2 NZLR 283 (CA) at 284-285; Secretary of Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27].

10     Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 552.

the LCRO acted unreasonably in making his decision, and then failed to actively facilitate the interests of justice by admitting the errors or consenting to judgment being entered.

[11]      On this basis, the applicants seek a contribution to costs of $7,170, plus disbursements (filing and service fee) of $650.9711 (excluding GST), from the LCRO.

[12]      In response, counsel for the LCRO, Ms Carrad, submits that the LCRO cannot be liable for costs as the Newton threshold is not met. The relevant errors were errors of law and process. The number of errors is therefore irrelevant. There was no bad faith or conduct warranting an expression of disapproval by the appellate court. Despite the Court’s reference to Wednesbury unreasonableness, the LCRO’s decision could not be categorised as perverse, in the sense of egregious or flagrant conduct. The LCRO considered relevant case law but erred in its application of it. The focus of the LCRO’s decision was on the maintenance of public confidence in the administration of justice, which was a relevant matter.

[13]      Ms Carrad observes that the LCRO abided the decision of the Court, in accordance with legal principle. As the LCRO took no active role in the proceeding, he is not a party who “failed” for the purposes of r 14.2(1)(a) of the Rules. Ms Carrad submits that it would have been inconsistent with the LCRO’s “abiding” stance to have admitted error or consented to judgment being entered, particularly once Ms Harris sought to be heard. This would have amounted to the LCRO “entering the fray” and appearing to favour one party’s interests over another’s.12

[14]      I accept that the LCRO is a judicial officer and the principles in Newton apply. The errors identified by my judgment concerned errors of law and process. There was no egregious conduct, and I did not find that the decision was perverse.

11 While the body of the submissions refers to $650.97, in the summary of orders sought the applicants’ memorandum refers to disbursements of $469.57. That amount is only the filing fee. Elsewhere in the submissions it is stated a fee of $181.40 for service is also sought.

12 Engineers Union v Court of Arbitration, above n 9, at 284-285.

[15]      It would be contrary to well-established principles to award costs against a judicial officer who abided the decision of the Court in a judicial review proceeding. Therefore, I do not order costs against the LCRO.

To what extent is Ms Harris liable for costs?

[16]      The applicants acknowledge that Ms Harris (who lives in Australia) was initially uncertain about whether to participate in the proceeding. They also comment that her involvement in the litigation could be seen as a result of the LCRO’s errors in making his decision. However, their position is that she should be ordered to pay the balance of costs (after contributions by the LCRO as sought), totalling $7,050.50, plus disbursements of $1,556.20 (excluding GST).

[17]      Ms Harris has sought the assistance of Mr Walsh, a solicitor in Australia, to file a memorandum on her  behalf.  I  give  leave  for  that  memorandum  to  be filed. Mr Walsh submits that it would be unjust to make any costs order against Ms Harris. He submits that the error which ultimately lead to the proceeding was made by the appointed costs assessor, compounded by the Committee and the LCRO, and had been overlooked by the applicants prior to the decision of the Committee.

[18]      I accept that Ms Harris had no part in the error in the Committee’s decision.13 However, costs liability arises where a party opposes a proceeding and is unsuccessful. Ms Harris had the opportunity to abide the decision of the Court, or consent to the review, in exchange for costs immunity.14 She decided to exercise her right to oppose the application for review, presumably because she considered she had a strong chance of success. She must take responsibility for costs which arose from her decision to oppose the application.

[19]      However, as I have decided that this is not a case where the LCRO may be held liable for costs, Ms Harris is the only liable respondent.

13 The Committee found the fee the applicants had charged Ms Harris when acting for her was fair  and reasonable. The error was in the Committee stating that the fee that the applicants had charged Ms Harris was inclusive of GST, when in fact it was exclusive of GST.

14 The applicants proposed this arrangement in a letter to Ms Harris dated 15 March 2022, which accompanied the service of the originating documents.

[20]      In my view, she should not be held liable for the totality of costs sought against her and the LCRO. She did not file a statement of defence and appears to have been initially uncertain about whether to oppose the application at all. Ms Harris did not appear at the call for mention on 6 April 2022, or join the telephone conference before a Judge on the same date. A memorandum filed by the applicants on 2 June 2022 stated that it was still unclear whether Ms Harris wished to take part in the hearing, and the memorandum proceeds on the assumption that she will not be participating. On the same date, a memorandum filed on behalf of the LCRO stated that Ms Harris “has not yet played a role in the proceeding” and that it was “unknown whether [she] plan[ned] to appear and defend the proceedings”. Both these memoranda addressed the issue of whether a contradictor would be required at the hearing, given that the LCRO intended to abide the decision of the Court and Ms Harris had not yet engaged with the proceeding.

[21]      However, the file shows that from 8 June 2022, Ms Harris engaged with the proceeding as follows:

(a)On 8 June 2022 Mr Walsh attended a case management conference by telephone on behalf of Ms Harris to address the question of whether he would be able to represent Ms Harris at the proceeding;

(b)On 16 June 2022 the Court confirmed that Mr Walsh would not be able to represent Ms Harris,15 but granted Ms Harris leave to file an affidavit and submissions on her own behalf at the “eleventh hour”;

(c)On 19 June 2022, Ms Harris filed submissions in opposition to the application for judicial review (she did not file an affidavit). She sought to appear at the hearing by remote means;

15 Mr Walsh holds a practicing certificate in Australia. While the Trans-Tasman Mutual Recognition Act 1997 makes some provision for appearances by counsel from Australia, there was insufficient time for Mr Walsh to fulfil the necessary requirements prior to the scheduled hearing.

(d)On 20 June 2022 the Court granted Ms Harris permission to appear at the hearing by way of VMR;16

(e)On 22 June 2022, Ms Harris attended the hearing in person, via VMR. Her oral submissions were extremely brief.

[22]      In my view, Ms Harris is only liable for relevant costs and associated disbursements (excluding GST) from 8 June 2022, which I have found to be the date on which she first engaged with the proceeding. Up until that date, the file shows that the applicants were proceeding  as  if  the  application  would  be  undefended.  If  Ms Harris had declined to exercise her right to oppose the proceeding, the applicants would have continued to an undefended hearing (effectively a formal proof) and would have borne all costs arising from the proceeding (the LCRO being not liable for costs). On this basis, I consider it appropriate for the applicants to bear a portion of the costs, in all the circumstances of the case.

[23]      For completeness I note that Mr Walsh refers to C v Legal Complaints Review Officer17 in support of his submission that Ms Harris should not be liable for any costs. The circumstances of that case were entirely different. It does not assist the Court in the present case.

[24]Accordingly, Ms Harris is liable for costs as follows:

Date	Step	Description	Time	Costs
32	Preparation for hearing	1	$2,390
22 June 2022	34	Appearance for counsel	0.25	$597.50
TOTAL	$2,987.50

[25]Ms Harris is also liable to pay the applicants’ disbursements as follows:

Date	Step	Description	Cost (excl. GST)
51	Sealing the original copy of the judgment	$43.48
TOTAL	$43.48

16     Subsequent to her request to appear by remote means Ms Harris inquired if she needed to appear. I indicated in my minute of 20 June 2022 that it was desirable she appear.

17 C v Legal Complaints Review Officer [2013] NZAR 398 (HC).

Result

[26]      I make an order  for costs  against Ms Harris in  favour of  the  applicants.  Ms Harris is to pay costs of $2,987.50 plus disbursements of $43.48 (excluding GST) to the applicants.

Gordon J